Why the 'Silent' Filibuster Is Unconstitutional

By David RePass

For the first thirteen decades of its existence, the Senate allowed unlimited debate. This meant that a single senator, or just a few, could hold up passage of legislation by talking interminably (filibustering). This tactic was rarely used at first, but over the years it began to be employed often enough that in 1917 the Senate adopted a Cloture Rule; debate could be ended by a two-thirds vote. The two-thirds was later changed three-fifths.

In recent years, cloture has been turned upside down. Now all the minority needs to do to prevent a bill from even reaching the floor is simply to threaten to filibuster. Debate never begins. Real filibusters almost never take place. This is called a "silent" filibuster -- an oxymoron if there ever was one.

In years past, real filibusters rarely happened since they required opposition senators to go to the effort of standing on their feet and speaking continuously for hours on end. Only the most intense and dedicated opposition would mount filibusters. But with the advent of the "silent" filibuster, which requires no effort (other than telling the Majority Leader that there are 41 members opposed to a bill), the number of "filibusters" has increased enormously. The practice of requiring a supermajority of 60 has now become routine.

The demise of majority rule in the Senate is a violation of the Founding Fathers' clear wishes and intent.

When it came to procedures, they believed that simple majorities, not supermajorities, should be the rule. This is demonstrated in Article 1, Section 5, of the Constitution which says that "a majority of each House shall constitute a quorum to do business."

During the Constitutional Convention, the Founding Fathers had considered supermajority quorums but rejected the idea. Federalist Paper No. 58 says that "in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed if quorums of more than a majority were required. It would be no longer the majority that would rule: the power would be transferred to the minority."

There is no difference in procedural effect between requiring a supermajority quorum and requiring supermajority approval to bring a matter to the floor.

Furthermore, the Founding Fathers required supermajorities in only five very special circumstances -- another clear indication that they assumed majority rule would be the norm. Two-thirds majorities were prescribed only to override vetoes, ratify treaties, expel members of Congress, propose amendments to the Constitution and to convict in impeachment cases.

In addition to ending majority rule, the routine practice of preemptive cloture is unconstitutional because it gives a minority bloc the equivalent of a veto power, a power that the Founding Fathers conferred only on the president.

But throughout the course of the 111th Congress, if a bill did not meet the approval of the minority bloc in the Senate, it was threatened with a filibuster. This threat was so powerful that it was tantamount to a veto. The veto could be "overridden" only if a supermajority of three-fifths could be found to support the bill. Most bills that came to the Senate from the House died by the hand of this veto -- no motion to proceed was even attempted.

Those bills that did get to the floor for debate had been heavily watered down to secure the concurrence of sixty Senators. Just as a president can strongly influence the content of legislation by threatening to veto it, the minority bloc was able to force bills be to considerably altered. As a consequence, the legislation that did pass was much less effective than it might have been.

For example, most economists thought that the stimulus package was too small to really jumpstart the economy and reduce unemployment. The health insurance reform that was finally passed failed to provide for the competition necessary to keep premiums low, and the financial reform legislation sidestepped the "too big to fail" problem and did little to deal with the risky financial instruments that are likely to become toxic assets.

It is often argued that the Senate rules that require 60 votes to move legislation are constitutional because the Constitution grants each House the power to "determine the rules of its proceedings." Surely the Founding Fathers did not intend that this rule-making power be used to fundamentally alter the basic structure of the Constitution -- by, for example, eliminating majority rule and granting veto power to a two-fifths minority.

At the beginning of the new Congress, senators will be establishing rules for the upcoming session. Let us hope that our senators will rise above petty partisan gamesmanship and realize that they have been engaged in practices that dishonor the Constitution. They should revise the rules so that motions to proceed are non-debatable (cannot be filibustered), and require a substantial effort on the part of the minority to mount a filibuster so that the threat of a filibuster would be credible only if an intense and committed minority existed.

It has recently been announced that the House of Representatives is going to honor the Constitution by having it read at the beginning of the session and by requiring that all legislation be in conformity with it. We will see on Wednesday if the Senate is willing to honor the Constitution by re-establishing majority rule.